July « 2008 « Australian Regulatory Compliance Review from Langes+ Lawyers

July 7, 2008

AML/CTF: what constitutes a reporting entity

Austrac has issued Public Legal Interpretation No. 4 of 2008 – What constitutes a reporting entity (pdf).

The purpose of the Public Legal Interpretation is to set out AUSTRAC’s views on the provisions of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 as they relate to:
• who is a provider of a ‘designated service’; and therefore, who is a ‘reporting entity’
• what is meant by ‘carrying on a business’ and acting ‘in the capacity of’ a provider of designated services
• the obligation to lodge a compliance report.

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Posted 7th July 2008 by David Jacobson in Anti-money laundering

July 4, 2008

COAG 3 July 2008 communique

The 3rd meeting of COAG since the Rudd Government was elected reflects its commitment to drive reform.

The communique identifies the outcomes including:

Leaders signed an agreement to end the fragmented and inconsistent
approach to the protection of workers’ occupational health and safety.
This will see the implementation of uniform legislation, complemented by consistent
compliance and enforcement.
COAG has also agreed to develop a national trade licensing system that will
remove inconsistencies across State borders and allow for a much more mobile
workforce. A new national system will be signed off by COAG in December 2008. COAG has agreed that the national system will initially apply
to the following trades:
- air conditioning and refrigeration mechanics occupations;
- building occupations;
- electrical occupations;
- land transport occupations (passenger vehicle drivers, dangerous goods);
- maritime occupations;
- plumbing occupations; and
- property agent occupations.
COAG also agreed to a new Business Names Registration system
A new Standard Business Reporting program was also agreed by COAG that will
radically streamline the myriad of financial reporting requirements on businesses.
the Commonwealth will take over responsibility
for the regulation of trustee companies, mortgage broking, margin lending and
non‑deposit lending institutions as well as remaining areas of consumer
credit. The Business Regulation and Competition
Working Group will examine this matter and report back to COAG in October 2008.
COAG has agreed that the Commonwealth
will assume responsibility for the making of permanent product bans and standards
under the Trade Practices Act 1974. States will retain powers to issue
interim product bans.
A new electronic conveyancing system is to commence in 2010.

Other future reform priority areas were agreed on.

COAG will meet again in Perth on 2 October 2008.

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Posted 4th July 2008 by David Jacobson in Business Planning, Compliance, Corporations Act, Deregulation, Financial Services, Trade Practices, Workplace

July 3, 2008

Consumer credit regulation to be transferred to Commonwealth

Senator the Hon Nick Sherry, Minister for Superannuation and
Corporate Law, has announced that the Commonwealth Government reached
agreement with the States and Territories at the Council of
Australian Governments (COAG) meeting in Sydney on 3 July, to assume
responsibility for regulation of all consumer credit. (COAG Communique 3 July 2008)

Consumer credit includes personal loans, credit cards, pay day lending and micro loans.

COAG has also formally
agreed that the Australian Government will assume responsibility
for regulating mortgages, mortgage brokers, trustee companies, non-bank
lenders and margin loans.

In March, COAG requested that the
case for reform of consumer credit be further examined. To this end,
the Government released a Green Paper on Financial Services and Credit Reform
in early June. Submissions closed on 1 July.

During the coming months, the Commonwealth
Government, in consultation with the States and Territories, will
develop a plan to present to COAG in October 2008 on how this
major agreement will be implemented.

At the same time the Ministerial Council on Consumer Affairs (MCCA) will be considering its response to the Final Report of the Productivity Commission’s Review of Australia’s Consumer Policy Framework for presentation to COAG in October as agreed at MCCA’s 23 May 2008 meeting.

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Posted 3rd July 2008 by David Jacobson in Financial Services

Standardised business reporting

The Minister for Finance and Deregulation has announced that the Commonwealth and all of the states and territories have re-committed to supporting standardised business reporting (SBR).

SBR is working to an aggressive timetable to ensure red tape is cut by July 2010 by:

Removing unnecessary and duplicated information from government forms;
Using business software to automatically pre-fill government forms;
Adopting a common business language, based on international standards;
Aligning government reporting with natural business processes; and
Providing a single online sign-on, form validation, and confirmation of forms receipt.

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Posted 3rd July 2008 by David Jacobson in Deregulation

July 2, 2008

Disclosure by ADI’s of capital and risk information: APS 330

From the current quarter (ending 30 September 2008) ADI’s (banks, building societies, credit unions) will be required under APRA APS 330 (pdf) to disclose (depending on whether they are locally or foreign owned) a range of both quantitative (semi-annually) and qualitative (annually) prudential information, in addition to the disclosure of some basic prudential information (on a quarterly and annual basis).

The ADI’s must disclose material capital management and credit exposure data on their websites unless the information is proprietary and confidential.

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Posted 2nd July 2008 by David Jacobson in Financial Services

What is a “charitable institution” for tax purposes?

It is important for not-for-profit organisations to be recognised as a charitable institution by the Tax Office in order to obtain income tax relief.

The ATO recently funded a test case to clarify when "political" and public advocacy activity would disqualify an organisation as a charity.

In Victorian Women Lawyers’
Association Inc v Commissioner of Taxation [2008] FCA 983 the Federal Court concluded that the organisation’s public activity was within its objects and that it was a a
charitable institution, being an organisation whose purposes are
beneficial to
the community according to the established definition of a "charitable
institution".

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Posted 2nd July 2008 by David Jacobson in Tax

Keep your trade marks current: Gallo v Lion Nathan

In E. & J. Gallo Winery v Lion Nathan
Australia Pty Limited [2008] FCA 934 the Federal Court rejected a claim by Gallo that Lion Nathan’s trade mark "Barefoot" in relation to a beer infringed its trade mark "Barefoot" in relation to wine.

Not only did Gallo fail to stop Lion Nathan, Lion Nathan succeeded in its counter-claim that Gallo’s trade mark be removed for non-use.

A detailed analysis of the case is made by Nicholas Weston here.

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Posted 2nd July 2008 by David Jacobson in Intellectual Property

Copying other people’s designs: a defendant wins

In Inform Design and Construction Pty Ltd v
Boutique Homes Melbourne Pty Ltd [2008] FCA 912 the Federal Court rejected a copyright claim in house plans (see previous note on Barrett v Metricon).

Kim Weatherall analyses the case in detail here: she concludes the defendant was able to substantiate its claim of independent design by producing a credible chain of evidence including a history of draft plans which evolved into the design in dispute which was similar to the plaintiff’s.

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Posted 2nd July 2008 by David Jacobson in Intellectual Property

July 1, 2008

Announcement: Langes+

On 1 July 2008 I will form a new legal practice together with the existing partners of Langes Lawyers of Sydney. The new national law practice will be called Langes+ and will specialise in law for credit unions and mutuals including corporate advisory, mergers, governance, risk management and compliance.

I will continue to publish Australian Regulatory Compliance Review in exactly the same way as I have for the last 4 years: no ads, links to original sources and with RSS feed and daily email. But I do have some exciting plans for improving the site.

The rules will remain the same: nothing in this site constitutes legal advice to readers and client matters will not be discussed. (see Disclaimer)

Thanks for reading.

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Posted 1st July 2008 by David Jacobson in Compliance